Adults can be slapped with felony charges for offenses committed at age 9, when they were too young to be considered delinquent, a Court of Appeals panel ruled Wednesday.

The ruling came in a Waukesha County case. The defendant, Shaun M. Sanders, allegedly kissed and fondled his sister's breasts when he was a young boy. The sister testified that the touching and kissing progressed to include oral sex when Sanders and she grew older .

The District 2 panel, in a decision written by Appeals Judge Mark D. Gundrum, ruled that state law does not prohibit children under 10 from being prosecuted for crimes, even though state law does not give juvenile courts jurisdiction over children alleged to be delinquent until they are 10.

In his opinion, Gundrum said the Legislature never adopted a law establishing that charging decisions should be determined by the defendant's age when the crime was committed "despite 50 years of holdings reiterating that the competency of a circuit court to address criminal acts of an individual is determined by the individual's age when a legal action is filed and not when he/she committed the acts,."

The appeals panel acknowledged that Sanders, if his alleged conduct has been discovered before he was 10, would have been treated as a child in need of protective services (CHIPS).

Sanders, now 22, denied the allegations against him. He told the jury that for about one month, when he was eight or nine, he would ask his sister to lift up her shirt and show him her breasts.

He eventually was acquitted by a jury of repeated sexual assault of a same child, a crime he was accused of committing from the age of nine to 12, but was convicted of repeated sexual assault of a child, incest with a child and enticing a child for sexual purposes crimes that occurred when he was 14 years old to 18 years old.

Sanders argued that his lawyer was ineffective for not trying to get the first count dismissed and that allowing the jury to hear the allegations contained in the first count was prejudicial to his case.

The court rejected Sanders ' assertion that the legislature set age limits for the juvenile and adult systems to protect children younger than 10 from the potential consequences of their actions.

"Our courts ... have explained that the legislative purpose of the age limits is to ensure persons who commit criminal acts are treated by our justice system in a manner appropriate to their age when the actions are addressed by the system and not their age when they committed the wrongful acts," Gundrum wrote.

In his concurrence, Reilly he said he was concerned that "at some stage a child does not have the capacity to commit a crime, i.e., siblings, aged two and three, sharing a bath and paying 'doctor' do not have the capacity to commit the crime of sexual assault of a child."

"The imprisonment of an adult for conduct the person engaged in when they were between the ages of one and nine years old strikes me as akin to punishing a puppy two days after the puppy had an accident in the house - the child/puppy has no idea why they were just struck and all they have learned is a fear of their master," he wrote.

However, he said, an appeals court previously ruled that it was OK to file a delinquency petition against a 12-year-old who committed a crime when he was still young enough to qualify as a CHIPS.

"If it is permissible for the state to pull a CHIPS category act into a delinquency petition, then there is no logical reason why the state cannot pull a CHIPS category act into a criminal complaint," he wrote.